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[The following was originally published in BADIL's al-Majdal.]
Between mid-February and early March 2012, the Committee on the Elimination of Racial Discrimination held its 80th session, in which it evaluated the compliance of several states with the 1966 International Convention on the Elimination of all Forms of Racial Discrimination (ICERD). Among these states was Israel, which became a party to the Convention in 1979. The Committee’s concluding observations and recommendations are notable because they establish that Israel’s policies in the Occupied Palestinian Territory (OPT) are tantamount to Apartheid, and additionally determine that many state policies within Israel also violate the prohibition on Apartheid as enshrined in Article 3 of the Convention.
Apartheid in ICERD and the Apartheid Convention
The ICERD is a short document comprising only seven substantive articles. It imposes positive obligations upon states to combat racism, as well as negative duties mandating that they refrain from violating equal access to education, health, society, family, nationality, religion, work, and immunity from violence. Ratified in 1969, ICERD preceded the International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) by seven years.
Article 3 of ICERD condemns “racial segregation and apartheid” and obligates State signatories to “prevent, prohibit and eradicate all practices of this nature under their jurisdiction.” Unlike the Apartheid Convention, there is an effective consensus that apartheid, as discussed in ICERD, is not particular to South Africa. Whereas some commentators insist that the Apartheid Convention applied uniquely to South Africa during the era of white minority rule, international legal scholar John Dugard explains that the Apartheid Convention’s universal application is well established on account of its invocation. Thus Additional Protocol I (1977) to the 1949 Geneva Conventions (1949), in Article 85, paragraph 4(c), recognized apartheid as a grave breach without geographical limitation. More recently, Article 7 of the Rome Statute, ratified several years after the completion of the democratic transition in South Africa, included the crime of apartheid as a crime against humanity. Israel is a party to ICERD but has neither signed nor ratified the Apartheid Convention.
Applicability of ICERD in the OPT
Palestinian human rights organizations began bringing claims arising out of Israeli practice in the OPT before the Committee on the Elimination of Racial Discrimination in 1998. Israel has consistently rejected the applicability of human rights treaties to Arab territories it occupies, yet does not contend that another body of law is better suited for the Territory. Rather, it argues that even Occupation Law, as set forth in the Fourth Geneva Convention Relative to the Protection of Civilians in Times of War, is applicable only as a matter of discretion and not law. Israel’s contention would render the OPT a legal black hole. Authoritative human rights bodies, as well as various United Nations agencies have however consistently rejected these claims.
The United Nations Committee on Economic, Social, and Cultural Rights as well as the Human Rights Committee have held that human rights law is applicable to the OPT. In its Advisory Opinion on Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice also affirmed the applicability of human rights law, and specifically the Fourth Geneva Convention, to the OPT. The Committee for the Elimination of All Forms of Racial Discrimination has repeatedly affirmed the applicability of ICERD. In its most recent Concluding Observations, it reiterated its affirmation and held that ICERD should be applied according to a test of “effective control,” from which jurisdiction flows the enjoyment of full rights under the Convention “without discrimination based on ethnicity, citizenship, or national origin.” Accordingly, despite Israel’s enduring protests, the Committee for the Elimination of Racial Discrimination has reviewed the State’s compliance with the Convention in 1998, 2003, and . At those Review Sessions, the Committee made significant findings but nothing as bold or firm as its conclusions and observations in the 2012 Session.
Apartheid and Israel: Highlighting the strides between 2007 and 2012
In the Committee’s 80th session, members of the Palestinian Coalition for Human Rights Organizations (PCHRO) collectively demonstrated how systematic discrimination against non-Jews drove the ban on family reunification and the forced population transfer of indigenous Bedouins in the Negev; underpinned the lack of a constitutional right to equality; and explained the dramatic spike in settler violence, the disproportionate allocation of water, the forced population transfer of Palestinians from East Jerusalem, the systematic destruction of Palestinian homes, and the unequal access to justice and accountability in the Gaza Strip.
The Committee has come to describe the situation within the OPT as a demonstrable case of Apartheid. Whereas it in 2007 noted that Israel cannot legitimately distinguish between Israelis and Palestinians in the OPT on the basis of citizenship status, in 2012 it stated that it is extremely concerned by the de facto segregation and discrimination within the Territory between Jews and non-Jews. The distinction is of paramount importance; whereas states can legitimately discriminate between citizens and aliens within their sovereign territory, they are prohibited from privileging communities under their jurisdiction on the basis of race, religion and ethnicity. In paragraph 24 the Committee writes:
The Committee is particularly appalled at the hermetic character of the separation of two groups, who live on the same territory but do not enjoy either equal use of roads and infrastructure or equal access to basic services and water resources. Such separation is concretized by the implementation of a complex combination of movement restrictions consisting of the Wall, roadblocks, the obligation to use separate roads and a permit regime that only impacts the Palestinian population (Article 3 of the Convention).
The Committee draws the State party’s attention to its General Recommendation 19 (1995) concerning the prevention, prohibition and eradication of all policies and practices of racial segregation and apartheid, and urges the State party to take immediate measures to prohibit and eradicate any such policies or practices which severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory and which violate the provisions of article 3 of the Convention.
The Committee also addressed Israel’s discriminatory zoning and planning policy as a comprehensive system aimed at achieving a “demographic balance” (para 25). Accordingly, it urges Israel to reconsider the “entire policy” in order to ensure equal access to land and its resources among Palestinian and Bedouin communities within Israel.
The Committee rejected Israel’s argument that military exigencies necessitate the differentiated treatment among the OPT’s population. To the contrary, the Committee concluded that in order to prevent racial discrimination in the criminal justice system, Israel must “ensure equal access to justice for all persons residing in territories under the State Party’s effective control” (para 27). It considers the trial of children as contravention of international norms and regards administrative detention as no less than arbitrary detention under international human rights law. Rather than accept the disparate treatment of Palestinians and Jewish settlers as resulting from the application of Occupation Law, the Committee attributes the discriminatory treatment to Israel’s establishment of two sets of laws; one for Palestinians and another for Jewish settlers.
Apartheid within Israel
Perhaps the most significant development in the Committee’s Conclusions concerned its application of Article 3 violations to the treatment of non-Jewish persons within Israel. In paragraph 11 it notes
… with increased concern that Israeli society maintains Jewish and non-Jewish sectors, which raises issues under Article 3 of the Convention. Clarifications provided by the delegation confirmed the Committee’s concerns in relation to the existence of two systems of education, one in Hebrew and one in Arabic, which except in rare circumstances remain impermeable and inaccessible to the other community, as well as separate municipalities: Jewish municipalities and the so-called “municipalities of the minorities.”
The Committee noted that discrimination between Jews and non-Jews facilitates unequal access to land and housing rights within Israel in ways that mirror Israeli policies in the OPT. Whereas in 2007 the Committee took issue with the role of para-statal organizations in confiscating land for exclusive Jewish use, the Committee’s 2012 Conclusions place this burden upon the State itself and note that the State party must “ensure equal access to land and property and to that end abrogate or rescind any legislation that does not comply with the principle of non-discrimination.”
The Committee was particularly concerned with the Israel Land Administration Law of 2009, the 2010 Amendment to the Land (Acquisition for Public Purpose) Ordinance (1943); and the 2010 Amendment to the Negev Development Authority Law (1991). It considered the Admissions Committee Law (2011), which gives individuals the right to discriminate against persons in regards to housing, to be a “clear sign” that concerns about segregation remain pressing (para 11). This finding undermines Israel’s attempts to task private bodies with responsibility for longstanding policies of discrimination, and thereby circumvent the ruling in Ka’adan v. The Israel Lands Administration (2000), in which Israel’s supreme court deemed discriminatory housing and land policies by public institutions illegal. The Committee also emphasized that Israel should withdraw the discriminatory Law for the Regulation of the Bedouin Settlement in the Negev proposed in 2012, which the Committee found to be tantamount to “legaliz[ing] the ongoing policy of home demolitions and forced displacement of the indigenous Bedouin communities” (para 2).
In line with this bold approach, the Committee urged Israel to rescind the Citizenship and Entry into Israel Law and to facilitate the reunification of all families irrespective of their ethnic, national or other origin.
By extending its application of Article 3 to Israel and finding that racial discrimination and apartheid exist as a de jure policy within the OPT, the Committee in its 2012 Concluding Observations achieved what the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, better known as the Durban Conference, could not. In fact, the Committee has urged Israel to “give effect to the Durban Declaration and Programme of Action.” Bearing in mind Israel’s objections to the process and the document, the Committee encouraged the State Party to re-examine its position and adopt policies to implement Durban because of the document’s significance for “a large segment of humanity” (para 31). This marks a significant milestone in the struggle for Palestinian human rights. Whereas compliance with the Fourth Geneva Convention and the cessation of its application prescribes the removal of the military occupation and return the situation to its status quo ante, human rights law would reverse those conditions of inequality that have developed as a result of the Occupation’s prolonged nature. Moreover, the Committee acknowledged that the discriminatory treatment between Jews and non-Jews within Israel concerning their human rights, including land and housing rights, is tantamount to Apartheid. The Committee’s conclusions amply vindicate the efforts of Palestinian human rights organizations and their partners. However, its inability to enforce its recommendations heightens the significance of, and the need for, the continued work of human rights organizations, scholars, and activists.